Shelton v. Clark's Ad'rx

Oldiiam, J.

The'finding of the circuit court upon the issue of nul tiel record is most clearly erroneous. The record produced in evidence precisely corresponds with that described in the declarar tion, and fully sustained the issue upon the part of the plaintiff.

If the decision of the court below was governed by the opinion that there Was a variance between the declaration and record in regard to the amount recovered for costs, such an opinion was erroneous. The rule is laid down in Caldwell vs. Bell & Graham, 3 Ark. R. 419, that “when no specific sum is adjudged to the party for his costs he should not, in declaring upon such a judgment, describe it as a judgment for costs in numero, but should describe it truly, and then by appropriate averments show the amount of costs to which he is entitled upon and by virtue of the judgment.” But we do not apprehend that the averment should state the exact amount of costs recovered by such judgment, but that it will be sufficient if it state any sum sufficient to cover the amount of costs, leaving the amount to be recovered therefor to be governed by the evidence. Such is the course adopted by the pleader in this .case, Judgment reversed,